Benjamin & Khoury Pty Ltd v Rahme (No 2) - [2022] NSWSC 1143

Supreme Court

New South Wales

Medium Neutral Citation: Benjamin & Khoury Pty Ltd v Rahme (No 2) [2022] NSWSC 1143
Hearing dates: 24 August 2022
Decision date: 29 August 2022
Jurisdiction: Common Law
Before: Adamson J
Decision:
In proceedings 2021/330107
(1)   Dismiss the first defendant’s notice of motion filed 21 April 2022.
(2)   Order the first defendant to pay the plaintiff’s costs of the notice of motion.
(3)   Direct the parties to agree on a date for further directions and communicate such date to my Associate by 1 September 2022 so that the matter can be listed before the Registrar for that purpose.
(4)   Failing agreement by the parties on a date, list the matter for further directions before the Registrar on 5 September 2022.
In proceedings 2021/330110
(1)   Dismiss the first defendant’s notice of motion filed 21 April 2022.
(2)   Order the first defendant to pay the plaintiff’s costs of the notice of motion.
(3)   Direct the parties to agree on a date for further directions and communicate such date to my Associate by 1 September 2022 so that the matter can be listed before the Registrar for that purpose.
(4)   Failing agreement by the parties on a date, list the matter for further directions before the Registrar on 5 September 2022.

Catchwords:
CIVIL PROCEDURE — Subpoenas — Application to set aside — Abuse of process — where documents sought relevant to issue of application of indemnity principle in appeal against costs certificates — where not oppressive — application dismissed
COSTS — Costs assessment — Determination — Review/appeal — discussion of principles

Legislation Cited:
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law Application Act 2014 No 16 (NSW), ss 71, 89
Legal Profession Uniform Law (NSW), ss 178, 198
Limitation Act 1969 (NSW)
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
John Sharpe

Cases Cited:
Benjamin & Khoury Pty Ltd v Rahme [2022] NSWCSC 766
Rahme v Benjamin & Khoury Pty Ltd (2019) 100 NSWLR 550; [2019] NSWCA 211
Rahme v Benjamin & Khoury Pty Ltd (No 2) [2019] NSWCA 239
Rahme v Satouris [2018] NSWSC 1753
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145

Category: Procedural rulings
Parties: Benjamin & Khoury Pty Ltd (Plaintiff)
Dana Rahme (First Defendant)
John Sharpe (Second Defendant)
Gregory Walsh (Third Defendant)
Representation:
Counsel:
T K Smith (Plaintiff)
C Bevan (First Defendant)
Submitting appearance (Second and Third Defendants)
Solicitors:
Daniel Jude Lawyers (Plaintiff)
Solon Lawyers (First Defendant)
Crown Solicitors Office (Second and Third Defendants)

File Number(s): 2021/330107; 2021/330110

JUDGMENT

Introduction

By notice of motion filed on 21 April 2022, Dana Rahme, the first defendant, seeks an order that the notice to produce served on her by Benjamin & Khoury Pty Ltd (B & K), the plaintiff, and the subpoena served on Kekatos Lawyers, her former solicitors, by B & K, be set aside. The grounds relied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1143
Decision Date: 29 August 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Benjamin & Khoury Pty Ltd brought an application against Rahme to set aside subpoenas issued in relation to their proceedings. The application was grounded in the assertion that the subpoenas were oppressive and constituted an abuse of process. The case was heard by Judge McInerney who had to determine whether the subpoenas were indeed oppressive and whether they constituted an abuse of process. The judge examined the circumstances under which the subpoenas were issued and their relevance to the application of the indemnity principle in the context of an appeal against costs certificates.

The primary legal issue before the court was whether the subpoenas were oppressive or an abuse of process. The court had to consider the nature and scope of the subpoenas, the relevance of the documents sought, and whether there were any grounds to suggest that the subpoenas were being used for an improper purpose. The judge found that the documents sought were relevant to the issue of the indemnity principle, and while the application was not frivolous, it was not without merit either. However, the judge concluded that the subpoenas were not oppressive or an abuse of process, given the circumstances of the case.

The court’s reasoning was that, while the application raised valid concerns, the documents sought were relevant to the proceedings and their disclosure was necessary for the fair resolution of the costs appeal. The judge emphasised that the application to set aside the subpoenas was not an appeal against the merits of the case but rather an application to halt the disclosure of documents that were pertinent to the legal issues at hand. The application was ultimately dismissed as the court found no basis to conclude that the subpoenas were oppressive or an abuse of process.

No further orders were made by the court beyond the dismissal of the application to set aside the subpoenas. The judge's decision underscored the importance of ensuring that legal processes are not misused while also recognising the necessity of obtaining relevant evidence to resolve legal disputes effectively.

Orders